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Maddox v. State

Supreme Court of Hawaii

December 14, 2017

MICKEY A. MADDOX, Petitioner/Petitioner-Appellant,
STATE OF HAWAI'I, Respondent/Respondent-Appellee.


          Mickey A. Maddox pro se.



          POLLACK, J.

         A defendant's constitutional right to effective assistance of counsel requires a defense attorney to proceed with competence and diligence throughout the proceedings of a case. This case presents the question of whether a post- conviction petition raises colorable claims for relief when the petitioner alleges that his stated desire to appeal the order dismissing his case without prejudice was not effectuated by his trial counsel and further alleges that his counsel wholly abandoned him following the court's oral ruling of dismissal. Under the circumstances of this case, we hold that the petitioner has raised colorable claims for post-conviction relief based upon grounds of ineffective assistance of counsel and abandonment of representation by defense counsel.


         A. Circuit Court Proceedings in the 2007 Case

         On March 19, 2007, the State filed an indictment charging Mickey A. Maddox with attempted escape in the second degree and promoting prison contraband in the first degree (2007 case). Maddox was arraigned several months later on July 31, 2007 in the Circuit Court of the Second Circuit (circuit court), and he entered a plea of not guilty to both charges. The trial was delayed almost two years due to multiple motions to continue trial and motions to withdraw and substitute counsel. During much of this time, Maddox waived his rights to a speedy trial under the state and federal constitutions and Hawai'i Rules of Penal Procedure (HRPP) Rule 48.[1] On December 23, 2008, the circuit court granted Maddox's motion to substitute defense counsel, issuing an order that appointed "legal counsel for the Defendant at all stages of proceedings, including appeal, if any, " pursuant to Hawaii Revised Statutes (HRS) § 802-5(a) (2010).[2] On April 8, 2009, Maddox's counsel (hereafter "trial counsel") filed a motion to dismiss the indictment asserting violation of Maddox's right to a speedy trial under the federal and state constitutions and HRPP Rule 48.[3] A hearing was held on the motion to dismiss on May 14-15, 2009.[4] The circuit court found that after taking into account excluded periods, trial was scheduled to commence 200 days after indictment. The court concluded that this delay violated HRPP Rule 48, and after applying the factors set forth in State v. Estencion, 63 Hawai'i 264, 269, 625 P.2d 1040, 1044 (1981), [5] the court orally ruled that the indictment should be dismissed without prejudice.

         On May 29, 2009, two weeks after the 2007 case's oral dismissal, Maddox was re-indicted on charges identical to those that had been dismissed (2009 case). That same day, Maddox filed a pro-se "Second Notice of Appeal" of the 2007 case, [6] along with a "Motion for New Counsel" and a "Motion for Assistance of Counsel on Appeal." In the motions, Maddox informed the circuit court that he intended to appeal the order dismissing the 2007 case without prejudice and asked for new counsel because he was claiming ineffective assistance of counsel against his trial counsel in the 2007 case. Maddox subsequently withdrew the notice of appeal on June 3, 2009, because he had moved to dismiss the 2009 case with prejudice the day before. Maddox explained that his appeal would be moot if the circuit court granted his motion. Later, on June 9, 2009, Maddox filed a pro-se "Third Notice of Appeal, " again informing the court that he was appealing the dismissal without prejudice of the 2007 case.[7]

         The record does not reflect a motion by trial counsel to withdraw, nor does the record indicate that trial counsel continued to act as counsel for Maddox after the May 15, 2009 hearing. Other than trial counsel's motion for compensation in excess of the statutory maximum for court-appointed counsel under HRS § 802-5, filed July 15, 2009, all subsequent filings pertaining to the 2007 case were handwritten, pro se submissions by Maddox.[8]

         On August 25, 2009, the Intermediate Court of Appeals (ICA) dismissed Maddox's appeal of the 2007 case for lack of appellate jurisdiction. In its order of dismissal, the ICA stated, "[f]or reasons that are not clear, the circuit court has not yet entered a written order of dismissal without prejudice." The ICA concluded that even if an order had been entered, it would not be appealable under HRS § 641-11 (2010) because no sentence had been imposed.[9] On January 7, 2010, almost eight months after the 2007 case was orally dismissed, the circuit court entered its order dismissing the 2007 case without prejudice based on the HRPP Rule 48 violation.[10]

         B. Circuit Court Proceedings in the 2009 Case

         As stated, Maddox was re-indicted in 2009 on the same charges dismissed in the 2007 case. The Office of the Public Defender, which was initially appointed to represent Maddox in the 2009 case, made a motion to withdraw as counsel. At the scheduled arraignment on June 4, 2009, the circuit court also heard the motion to withdraw as counsel, and the court asked Maddox if trial counsel in the 2007 case was still representing him.[11] Maddox replied that he would be claiming ineffective assistance of counsel because he had to "put in all [his] own motions before, " asserting also that trial counsel had lied to him. Subsequently, on June 28, 2010, pursuant to a plea agreement with the State, Maddox entered no contest pleas to both counts in the 2009 case and to a separate charge of terroristic threatening in the second degree. The cases referenced in the plea agreement form are the 2009 case and the charge of terroristic threatening. The plea agreement and plea form did not reference the 2007 case.

         Consistent with the plea agreement, Maddox was sentenced on August 27, 2010, to probation for five years in the 2009 case and one year probation for the terroristic threatening offense, terms to be served concurrently. Maddox was later arrested for probation violations. At a probation revocation hearing on February 19, 2013, Maddox agreed to a second plea agreement in the 2009 case, in which he admitted to violating the terms and conditions of his probation and entered no contest pleas in two other unrelated cases that were pending. Pursuant to the second plea agreement, Maddox was sentenced to concurrent terms of imprisonment of ten years and five years in the 2009 case and concurrent one-year prison terms for the unrelated offenses.

         C. Rule 40 Petition

         On April 26, 2013, Maddox filed a Petition for Post-Conviction Relief pursuant to HRPP Rule 40 (Petition) in which he set forth thirteen grounds for relief.[12] In the Petition, Maddox asserts, inter alia, that he was denied effective counsel on appeal in the 2007 case and that his trial attorney had "abandoned all representation of his client and left him without any representation, " despite Maddox being ordered to remain in custody. In particular, Maddox states that he gave oral notice of appeal following the circuit court's oral dismissal of the 2007 case on May 15, 2009.[13] Maddox also asserts in his Petition that after the hearing but while still in court, his trial counsel told him that "he could not represent [him] on appeal[], nor could he represent him in any manner since the case had been dismissed and his representation terminated at that time."

         On August 21, 2014, the circuit court entered its order denying the Petition without a hearing (Order Denying Petition). The court concluded that the grounds for relief were previously ruled upon in the 2009 case, and that the substance of the issues were also raised by Maddox prior to his entering into a plea agreement with the prosecution in the 2009 case. The court further found that "[a]lthough several attorneys have withdrawn as counsel for Petitioner in [the 2007 and 2009 cases], Petitioner has been represented by counsel throughout the proceedings in said cases." Because there was still a hearing pending in the 2009 case related to a motion for reconsideration of sentencing regarding credit for time served, the circuit court denied the Petition without prejudice.

         D. Appellate Proceedings

         On September 8, 2014, Maddox filed a notice of appeal from the circuit court's denial of the Petition, asserting thirteen questions on appeal and seventeen statements of error.[14]On March 31, 2016, the ICA entered its Summary Disposition Order in which it affirmed the circuit court's Order Denying Petition.[15] The ICA in its ruling did not address Maddox's claims individually, stating that upon "a thorough review of the record, which include[d] the records in [the 2007 case] and [the 2009 case], " post-conviction relief was not available to Maddox because all the claims for relief raised by Maddox in his Petition "have been previously ruled upon or have been waived."

         Maddox filed a pro se application for a writ of certiorari setting forth fourteen questions for review. Maddox asserts that he was "wrongfully denied initial appeal" in the 2007 case, and that he was denied his right to counsel on appeal as he was abandoned by trial counsel.[16] These claims for relief are encompassed by ground G of Maddox's Petition, which asserts that trial counsel "failed in his duty of representing his client" and "abandoned all representation of his client and left him without any representation."[17] We address the asserted claims as follows: (1) Maddox did not receive effective assistance of counsel following the court's oral dismissal without prejudice of the 2007 case; and (2) Maddox was abandoned by trial counsel prior to the termination of the 2007 case.


         Whether the "trial court erred in denying a Rule 40 petition without a hearing based on no showing of a colorable claim is reviewed de novo; thus, the right/wrong standard of review is applicable." Dan v. State, 76 Hawai'i 423, 427, 879 P.2d 528, 532 (1994) (holding that to determine whether a Rule 40 petition raises a colorable claim, "the appellate court steps into the trial court's position, reviews the same trial record, and redecides the issue").


         HRPP Rule 40(f) (2006) provides that a court must grant an evidentiary hearing on a petition for post-conviction relief if a petitioner "alleges facts that if proven would entitle the petitioner to relief." Thus, in reviewing on appeal the denial of a Rule 40 petition without a hearing, the question is whether the record indicates that the petitioner made "a showing of a colorable claim as to require a hearing before the lower court." Dan v. State, 76 Hawai'i 423, 427, 879 P.2d 528, 532 (1994).

         Accordingly, we evaluate Maddox's claims to determine whether they present a colorable claim for post-conviction relief such that a Rule 40 hearing was required. We first address Maddox's contention that he did not receive effective assistance of counsel with regard to the appeal of the 2007 case. Next, we consider Maddox's claim that he was entitled to assistance of counsel until his case was terminated.

         A. Ineffective Assistance of Counsel on Appeal

         Article I, section 14 of the Hawai'i Constitution guarantees a defendant in a criminal prosecution the right "to have the assistance of counsel for the accused's defense." Haw. Const, art. I, § 14. This court regards a defendant's constitutional right to the assistance of counsel as a "fundamental component" of our criminal justice system. State v. Smith, 68 Haw. 304, 309, 712 P.2d 496, 499 (1986) . It is well settled that "[t]he constitutional right to the assistance of counsel in a criminal case is satisfied only when such assistance is 'effective.'" State v. Kahalewai, 54 Haw. 28, 30, 501 P.2d 977, 979 (1972); accord State v. Tetu, 139 Hawai'i 207, 215, 386 P.3d 844, 852 (2016); State v. Pacheco, 96 Hawai'i 83, 93, 26 P.3d 572, 582 (2001) .

         This court set forth the standard by which we evaluate claims of ineffective assistance of counsel under the Hawai'i Constitution in State v. Antone, 62 Haw. 346, 348-49, 615 P.2d 101, 104 (1980). "General claims of ineffectiveness are insufficient" to establish that the assistance a defendant received was constitutionally ineffective. Dan, 76 Hawai'i at 427, 879 P.2d at 532 (quoting Briones v. State, 74 Haw. 442, 462-63, 848 P.2d 966, 976 (1993)). Rather, a defendant must show: (1) "specific errors or omissions of defense counsel reflecting counsel's lack of skill, judgment[, ] or diligence"; and that (2) "those errors or omissions resulted in the withdrawal or substantial impairment of a potentially meritorious defense." Antone, 62 Haw. at 348-49, 615 P.2d at 104 (internal citations omitted). Thus, to be entitled to a Rule 40 hearing on the basis of ineffective assistance of counsel, Maddox must first allege facts identifying a specific error or wrongful omission made by his counsel.

         Maddox asserts that, notwithstanding his repeated communications to trial counsel regarding his desire to appeal, trial counsel informed Maddox at the May 14-15 hearing that counsel's representation of Maddox terminated when the court orally dismissed the 2007 case without prejudice. However, our statutes, precedents, and court rules, as well as widely accepted legal standards, all make clear that trial counsel had an ongoing obligation to Maddox that included pursuing an appeal if Maddox chose this course.

         Hawai'i statutorily guarantees every defendant in a criminal case aggrieved by a circuit court judgment or final order the right to appeal. HRS § 641-11 (2016); State v. Nicol, 140 Hawai'i 482, 491, 403 P.3d 259, 266 (2017). When such an appeal of right exists, the equal protection and due process clauses of the Hawai'i and United States Constitutions grant the defendant a right to effective counsel during the appeal. Briones, 74 Haw. at 460, 848 P.2d at 975; Douglas v. California, 372 U.S. 353 (1963). This ongoing right to counsel is reflected in Hawai'i statutory law, which is unambiguous regarding the extent of a court-appointed counsel's responsibility to an indigent client:

[W]hen it shall appear to a judge that a person requesting the appointment of counsel satisfies the requirements of this chapter, the judge shall appoint counsel to represent the person at all stages of the proceedings, including appeal, if any. If conflicting interests exist, or if the ...

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